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ECP Appeal Rejected after following MSE Advice

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  • twhitehousescat
    twhitehousescat Posts: 5,368 Forumite
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    you need to prove your case at POPLpa , then go for the DPA kill
  • the_wheels_have_fallen_of
    the_wheels_have_fallen_of Posts: 199 Forumite
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    twhitehousescat wrote: »
    you need to prove your case at POPLpa , then go for the DPA kill

    Great many thanks twhitehousescat - so what we are saying is lets save that one for later then when POPLA probably reject ??? Ive got a seperate thread going further down page 1 of the forum with my Appeal that I've updated several times after advice
  • twhitehousescat
    twhitehousescat Posts: 5,368 Forumite
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    you get POPLa to state that the charge / ntk etc is flawed , that is your key to a DPA claim
  • Half_way
    Half_way Posts: 7,047 Forumite
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    Who's car park? You should also consider adpa claim against the landowner/who ever took on the ppc
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
  • the_wheels_have_fallen_of
    the_wheels_have_fallen_of Posts: 199 Forumite
    First Post Name Dropper First Anniversary Combo Breaker
    Half_way wrote: »
    Who's car park? You should also consider adpa claim against the landowner/who ever took on the ppc

    Hi Half-way - its an ECP one - Church Farm, Stockton Heath. Overstay on a "free car park". I am going to try and get back to the car park in question tomorrow as ECP in their first appeal rejection show signage of 90m stay yet I have read some posts that say theyve won POPLA appeal as NTK (which I cant find at moment !!) said 2h parking period. I have another thread going with my draft appeal which has been amended - its called something like ECP Appeal rejected after MSE advice
  • twhitehousescat
    twhitehousescat Posts: 5,368 Forumite
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    euri car parks are BPA members

    from code of practice:

    13 Grace periods
    13.1 Your approach to parking management must allow a
    driver who enters your car park but decides not to park,
    to leave the car park within a reasonable period without
    having their vehicle issued with a parking charge notice.
    13.2 You should allow the driver a reasonable ‘grace period’
    in which to decide if they are going to stay or go. If the
    driver is on your land without permission you should still
    allow them a grace period to read your signs and leave
    before you take enforcement action.
    13.3 You should be prepared to tell us the specific grace period
    at a site if our compliance team or our agents ask what it is.
    13.4 You should allow the driver a reasonable period to leave the
    private car park after the parking contract has ended, before
    you take enforcement action. If the location is one where
    parking is normally permitted, the Grace Period at the end
    of the parking period should be a minimum of 10 minutes.
  • the_wheels_have_fallen_of
    the_wheels_have_fallen_of Posts: 199 Forumite
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    Great - many thanks twhitehousecat - ill included that one in my POPLA appeal on the other thread that is getting longer by the tday !
  • the_wheels_have_fallen_of
    the_wheels_have_fallen_of Posts: 199 Forumite
    First Post Name Dropper First Anniversary Combo Breaker
    POPLA Appeal Reference: xxxxx

    I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver.


    I contend that I am not liable for this parking charge on the basis of the points below:


    1) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.


    The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me.

    The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-


    Understanding keeper liability
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

    No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:


    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


    2) Euro Car Parks have no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

    As this operator does not have proprietary interest in the land then I require that they produce an unredacted, contemporaneous copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name.


    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.


    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).


    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance: ‘7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.’

    7.3 The written authorisation must also set out:


    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.


    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.


    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.

    d) who has the responsibility for putting up and maintaining signs.


    e) the definition of the services provided by each party to the agreement. Euro Car Parks have not demonstrated that they had authority to issue parking notices for this site on the date that the PCN was given, and they have not provided a copy of the contract which would allow me to determine my liability and/or to request cancellation of the charge. Despite my specific request of 5 December 2016, Euro Car Parks have not provided me with a copy of the contract with the landowner or on site businesses, as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
  • the_wheels_have_fallen_of
    the_wheels_have_fallen_of Posts: 199 Forumite
    First Post Name Dropper First Anniversary Combo Breaker
    3) The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

    No evidence has been produced either way by this operator as why it is lawful to try to charge a rate (a reduced one) of £50 or full charge rate of £90 parking charge far exceeds the cost to the landowner of the alleged overstay. I therefore feel the charge asked for is punitive and unreasonable.

    This situation involves no breach of the legitimate interests of the landowner. This can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

    Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment, it was held:
    ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148:     “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ‘’

    And at the Supreme Court it was held at 14.     ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

    At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:     ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

    This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company:     ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Clearly a charge ‘out of all proportion’ to the alleged overstay - is an unfair penalty to the mind of any reasonable man. If the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

    The Consumer Rights Act 2015 supports my position that the failure in performance of the keypad and/or failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable:
    LINK: legislation.gov.uk/ukpga/2015/15/schedule/2/enacted
    - Schedule 2: 'Consumer contract terms which may be regarded as unfair':
    ’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
    ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

    This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
    The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair:

    LINK:legislation.gov.uk/ukdsi/2008/9780110811574/regulation/3
    ’’Prohibition of unfair commercial practices’’: 3.—

    (1) Unfair commercial practices are prohibited.

    (2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
    (3) A commercial practice is unfair if—
    (a) it contravenes the requirements of professional diligence; and
    (b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
    (4) A commercial practice is unfair if—
    (a) it is a misleading action under the provisions of regulation 5;
    (b) it is a misleading omission under the provisions of regulation 6; ‘’

    I have shown that Euro Car Parks have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (why ever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.

    4) Incorrect use of Fairlie vs Fenton 1870

    Euro Car Parks have mis-applied Fairlie vs Fenton 1870 by stating:
    Any person who makes a contract in his own name without disclosing the existence of a principal, or who, through disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. It therefore follows that a lawful contract between the car park operator and the motorist will be enforceable by the car park operator as a party to that contract. This is supported by case law of Fairlie v Fenton (1870 LR 5 Exch 169).
    The crucial part is 'renders himself personally liable'. Essentially this means the operator can sue the motorist if the motorist can sue the operator. In practice, this rarely is the case. The benefit to the motorist is the provision of a parking space, but if that goes wrong, the operator is quick to absolve themselves of responsibility. If the parking surface has a pothole and a vehicle suffers damage, or if the car park surface is covered in ice and the driver slips getting out of the car, then typically it will be the landowner the motorist sues, not the operator of a pair of cameras.

    5) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

    The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park from the public road and many of the words are in a small font and are not legible or intelligible.

    The BPA Code of Practice states that- “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

    There were no conspicuous signs throughout the site, and the signage contains texts so small as to be unintelligible, furthermore I put Euro car Parks to strict proof otherwise, As well as a site map they must show photographs of the signs as the driver would see them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car, the entrance to the car park, or the layout of the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore as stated (point #4) a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

    Furthermore the driver has not been identified and I have no obligation to assist an operator in this regard, even if I was certain which of several drivers could have used the car that day. As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

    (3) ''For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which—

    (i) specify the sum as the charge for unauthorised parking; and

    (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.''

    In fact, their signs are not visible from a car seat before parking and the words are completely unreadable and incapable of forming a contract before the act of parking (it is trite law that afterwards - after parking in this case - is too late).

    The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

    The sign is also incapable of creating any 'relevant obligation' or 'relevant contract' being the basic requirements leading to the possibility of 'keeper liability' under Schedule 4 of the POFA.

    In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound.
  • catfunt
    catfunt Posts: 624 Forumite
    Combo Breaker First Post First Anniversary
    Best to keep all questions relating to your case on one thread - that way, your questions have context and can be answered more accurately. Also keeps the forum more tidy.
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